Whitehead v. Astrue

Filing 25

MEMORANDUM OPINION AND ORDER entered. Upon consideration of the administrative record, plaintiff's brief, the Commissioner's brief, and the parties arguments during the hearing conducted on November 8, 2012, it is determined that the Commissioner's decision denying plaintiff benefits should be affirmed, as further set out. Signed by Magistrate Judge William E. Cassady on 11/29/2012. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CARLOS N. WHITEHEAD,
Plaintiff,

:
:

vs.

:

MICHAEL J. ASTRUE,
Commissioner of Social Security,

:

Defendant.

CA 12-0246-C

:

MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking
judicial review of a final decision of the Commissioner of Social Security denying his
claims for disability insurance benefits and supplemental security income. The parties
have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28
U.S.C. § 636(c), for all proceedings in this Court. (Docs. 22 & 24 (“In accordance with the
provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to
have a United States Magistrate Judge conduct any and all proceedings in this case, . . .
order the entry of a final judgment, and conduct all post-judgment proceedings.”).)
Upon consideration of the administrative record, plaintiff’s brief, the Commissioner’s
brief, and the parties’ arguments during the hearing conducted on November 8, 2012, it
is determined that the Commissioner’s decision denying plaintiff benefits should be
affirmed.1
1

Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 22 & 24 (“An appeal from a
judgment entered by a Magistrate Judge shall be taken directly to the United States Court of

(Continued)

Plaintiff alleges disability due to major depression with psychotic features. The
Administrative Law Judge (ALJ) made the following relevant findings:
1.
The claimant met the insured status requirements of the Social
Security Act through June 30, 2000.
2.
The claimant has not engaged in substantial gainful activity since
May 15, 1998, the alleged onset date (20 CFR 404.1520(b), 404.1571 et seq.,
416.920(b) and 416.971 et seq.).
3.
The claimant has the following severe impairments: substance
abuse disorder, affective depressive disorder, generalized anxiety
disorder, personality disorder, and cervical spondylosis (20 CFR
404.1520(c) and 416.920(c)).
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Peter T. Oas, Ph.D., a clinical psychologist, evaluated the claimant on a
consultative basis on August 19, 1999. The claimant complained of chest
pain and passing out. He reported that he stayed depressed. He reported
that he had been in an anger management program, and that he had a
history of arrests for domestic violence. He also described a history of
many arguments and physical fights, as well as arrests for trespassing,
theft, and marijuana possession. He admitted that he was an alcoholic. He
complained of irritability and moodiness. Dr. Oas noted that the
claimant’s chest pain was possibly related to stress. The mental status
examination was essentially unremarkable. Dr. Oas reported diagnostic
impressions of anxiety disorder, history of polysubstance dependence in
remission by report, depression not otherwise specified, and mixed
personality disorder.
James G. Brown, Ph.D., a state agency psychologist, reviewed the
evidence of record on September 9, 1999. He completed a psychiatric
review technique form on which he indicated that the claimant had
affective, anxiety, personality, and substance abuse disorders. He
estimated slight restriction of activities of daily living and moderate
restriction of social functioning. He indicated that the claimant often had
difficulties with concentration, persistence or pace, and that there were 1
to 2 episodes of decompensation. Dr. Brown also completed a mental
residual functional capacity assessment on which he indicated that the
claimant was moderately impaired in ability to maintain attention and
concentration for extended periods, in ability to respond appropriately to

Appeals for this judicial circuit in the same manner as an appeal from any other judgment of
this district court.”))

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supervision, in ability to travel independently, and in ability to set realistic
goals.
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Kent Rowland, Ph.D., a clinical psychologist, evaluated the claimant on
February 19, 2001. The claimant reported a history of alcohol dependence,
anxiety, and depression. He described a history of physical abuse by his
mother and stepfather. He reported drinking a six-pack of beer daily. He
stated that he had been arrested on multiple occasions for assault and
battery. He reported going into a rage with little memory of it afterward.
He complained of agitation, but did not appear to be agitated. Dr.
Rowland observed that the claimant’s memory and attention were slightly
weak, suggesting low average intellectual functioning. The examination
was otherwise unremarkable. Dr. Rowland reported diagnostic
impressions of anxiety disorder not otherwise specified, intermittent
explosive disorder, rule out mental disorder due to neurological cause,
rule out dissociative disorder, alcohol dependence, and antisocial
personality disorder. Dr. Rowland estimated a global assessment of
functioning of 55, which, according to the Diagnostic and Statistical Manual
of Mental Disorders (4th edition) (DSM-IV), indicates moderate symptoms
or moderate impairment in social or occupational functioning.
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Jane F. Cormier, Ph.D., a state agency psychologist, reviewed the evidence
of record on March 12, 2001, and completed a psychiatric review
technique form on which she indicated that the claimant had anxiety,
personality, and substance abuse disorders. She estimated mild
restrictions of activities of daily living and social functioning, as well as a
moderate restriction of concentration, persistence or pace. She indicated
that the “C” criteria were not present.
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.

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The claimant has been treated at Southwest Alabama Mental Health on an
intermittent basis since July 2002. Intake notes from July 2002 reflect that
the claimant had attended anger management programs at Mental Health
on almost a yearly basis since 1987. The claimant reported a history of
childhood abuse and a variety of physical complaints. Clay Kelly[]
diagnosed post-traumatic stress disorder, personality disorder not
otherwise specified, and generalized anxiety disorder, and estimated a
global assessment of functioning (GAF) of 55.
From September 2002 through May 2003, John R. Cranton, M.D., a
psychiatrist, treated the claimant for post-traumatic stress disorder with
anxiety, depression, and possible paranoia. The claimant reported that
treatment was beneficial. Dr. Cranton referred him for substance abuse
treatment.
3

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The claimant went to the emergency room at Evergreen Medical Center on
April 16, 2003, for treatment of chest pain. He was treated with an
injection of Toradol. He returned on April 19 with bilateral wrist
lacerations which were self-inflicted. The claimant denied suicidal
ideation and stated that he did not remember cutting his wrists. The
lacerations were sutured. The claimant returned to the hospital on April
22 and complained of suicidal ideation. He was admitted, and
demonstrated [st]eady improvement with treatment. The diagnoses were
alcohol dependence, depression not otherwise specified, generalized
anxiety disorder, and personality disorder with features of antisocial
personality. The claimant was discharged on April 28.
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.

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Robert DeFrancisco, Ph.D., a clinical psychologist, evaluated the claimant
on a consultative basis on August 18, 2003. The claimant complained of
cardiac arrhythmia, neck and back pain, and depression. He reported a
history of drug and alcohol abuse, but stated that he had been sober for
the past year and a half. He described a history of childhood abuse and
domestic violence as an adult. Dr. DeFrancisco observed that affect was
somewhat constricted but appropriate. He estimated upper borderline to
low average intelligence. The mental status examination was essentially
normal. The claimant reported that his activities of daily living included
household chores and occasional hunting and fishing. Dr. DeFrancisco
reported a diagnostic impression of pain disorder secondary to general
medical condition. He concluded that the claimant had no major mental
disturbance, and that the claimant could adequately understand,
remember and carry out simple instructions and respond to work
pressures.
Patricia Hinton, Ph.D., a state agency psychologist, reviewed the evidence
of record on September 9, 2003, and completed a psychiatric review
technique form on which she indicated that the claimant had affective,
anxiety, somatoform, personality, and substance abuse disorders. She
estimated mild restriction of activities of daily living, moderate restriction
of social functioning, and moderate restriction of concentration,
persistence or pace. She indicated that the evidence was insufficient to
make a determination on episodes of decompensation, and reported that
the “C” criteria were not present. Dr. Hinton also completed a mental
residual functional capacity assessment on which she reported that the
claimant was moderately limited in ability to understand, remember, and
carry out detailed or complex instructions; in ability to maintain attention
and concentration for extended periods; in ability to interact appropriately
with the public; and an ability to respond to change. She concluded that
the claimant could understand, remember, and carry out very short and
simple instructions, and that he could maintain attention and
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concentration for 2 hour periods. She recommended that public contact be
infrequent, and that change in the work setting be minimal.
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The claimant went to Southwest Alabama Mental Health on December 4,
2006, and complained of depression. The diagnosis was major depression
with psychotic features. The claimant’s GAF was rated at 65, which,
according to the DSM-IV, indicates mild symptoms. Additional treatment
notes clarify that the claimant reported complaints of night-time auditory
hallucinations and feelings of paranoia.
Robert Estock, M.D., a state agency medical consultant, reviewed the
evidence of record on January 8, 2007, and completed a psychiatric review
technique form on which he indicated that the claimant had affective,
anxiety, personality, and substance abuse disorders. He also completed a
mental residual functional capacity assessment on which he reported that
the claimant was moderately limited in ability to understand, remember,
and carry out detailed or complex instructions; in ability to maintain
attention and concentration for extended periods; in ability to interact
appropriately with the public; and in ability to respond to change. He
concluded that the claimant could understand, remember, and carry out
very short and simple instructions, and that he could maintain attention
and concentration for 2 hour periods. He recommended that public
contact be infrequent, and that change in the work setting be minimal.
On January 9, 2007, William Wilkerson, M.D., a psychiatrist at Mental
Health, submitted a letter to child support court in which he stated that
the claimant had not worked since 1998, that he had applied for disability,
and that he was disabled. In another letter dated May 1, 2007, Dr.
Wilkerson reported that the claimant was unable to work due to an
emotional disorder.
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Dr. DeFrancisco re-evaluated the claimant on a consultative basis on
August 5, 2007. The claimant complained of mental problems. He
reported nervousness and stated that he passed out about once a year. Dr.
DeFrancisco observed that the claimant was very angry and bitter. The
claimant was somewhat paranoid, but not delusional. Insight was
adequate but the claimant tended to blame others for his problems. His
effort during testing waxed and waned. Dr. DeFrancisco stated that the
claimant was able to remember instructions, but that he had a significant
attitude problem. Dr. DeFrancisco reported diagnostic impressions of
mental disorder not otherwise specified and ruled out paranoid
personality. He estimated that the claimant was moderately impaired in
ability to respond appropriately to supervision, co-workers, and the
public; in ability to use judgment in making work-related decisions; in
ability to respond appropriately to change; in ability to understand,
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remember and carry out instructions; in ability to maintain attention and
concentration for 2 hour periods; in social functioning; and in activities of
daily living.
Mental Health treatment notes dated August 7, 2007, indicated that the
claimant wanted to restart Prozac. He stated that he was in trouble for
growing marijuana. He admitted drinking a 12-pack of beer daily. Dr.
Wilkerson reported that alcohol abuse was present.
On August 21, 2007, Dr. Wilkerson completed a mental residual functional
capacity assessment on which he indicated that the claimant was
moderately impaired in activities of daily living; in social functioning; in
concentration, persistence or pace; and in ability to perform simple or
repetitive tasks. He estimated marked impairments in ability to respond
appropriately to pressure; in ability to understand, remember, and carry
out instructions; and in ability to respond appropriately to supervisors
and co-workers. Dr. Wilkerson stated that the claimant’s mood disorder
was separate from substance abuse and was not caused by it.
A Mental Health review of the claimant’s case was performed on January
15, 2008. Dr. Wilkerson reported diagnoses of major depression with
psychotic features and alcohol dependence. He estimated a GAF of 65 for
current functioning and for functioning over the past year. A treatment
note dated August 15, 2008, indicates that the claimant reported that his
hallucinations had nearly resolved.
On February 19, 2009, Dr. Wilkerson completed a mental residual
functional capacity assessment on which he indicated that the claimant
was moderately impaired in activities of daily living and in ability to
understand, remember, and carry out instructions. He estimated mild
impairment in ability to perform simple or repetitive tasks. He estimated
marked impairments in social functioning; in concentration, persistence or
pace; in ability to respond appropriately to pressure; and in ability to
respond appropriately to supervisors and co-workers.
4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d) and 416.920(d)).
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The claimant’s mental impairments, including the substance use disorder,
do not meet listings 12.04, 12.06, 12.08, or 12.09. In making this finding, the
undersigned has considered whether the “paragraph B” criteria are
satisfied. To satisfy the “paragraph B” criteria, the impairments must
result in at least two of the following: marked restriction of activities of
daily living; marked difficulties in maintaining social functioning; marked
difficulties in maintaining concentration, persistence, or pace; or repeated
6

episodes of decompensation, each of extended duration. A marked
limitation means more than moderate but less than extreme. Repeated
episodes of decompensation, each of extended duration, means three
episodes within 1 year, or an average of once every 4 months, each lasting
at least 2 weeks.
In activities of daily living, the claimant has mild restriction. In social
functioning, the claimant has marked difficulties. With regard to
concentration, persistence or pace, the claimant has moderate difficulties.
There is no evidence of any extended episode of decompensation.
Because the claimant’s mental impairments, including the substance use
disorder, do not cause at least two “marked” limitations or one “marked”
limitation and “repeated” episodes of decompensation, the “paragraph B”
criteria are not satisfied.
The limitations identified in the “paragraph B” criteria are not a residual
functional capacity assessment but are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process. The
mental residual functional capacity assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment by
itemizing various functions contained in the broad categories found in
paragraph[] B of the adult mental disorders listings in 12.00 of the Listing
of Impairments. Therefore, the following residual functional capacity
assessment reflects the degree of limitation the undersigned has found in
the “paragraph B” mental function analysis.
The undersigned has also considered whether the “paragraph C” criteria
are satisfied. In this case, the evidence fails to establish the presence of the
“paragraph C” criteria. Specifically, there is no indication of repeated
episodes of decompensation, each of extended duration; a residual disease
process that has resulted in such marginal adjustment that even a minimal
increase in mental demands or change in the environment would be
predicted to cause the individual to decompensate; or current history of 1
or more years’ inability to function outside a highly supportive living
arrangement with an indication of continued need for such an
arrangement. With regard to anxiety, there is no indication of complete
inability to function independently outside the area of one’s own home.
5.
After careful consideration of the entire record, the undersigned
finds that, based on all of the impairments, including the substance
abuse disorder, the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except that he is unable to perform overhead reaching and is unable to
work around unprotected heights and dangerous moving equipment.
He is unable to perform work requiring complex or detailed
instructions, but can perform work involving 1-2 step job instructions.
He is limited to routine work with minimal changes in job settings. He
is unable to tolerate public contact and is limited to minimal contact
7

with co-workers and supervisors. He is unable to meet the routine
attendance and production requirements of work about one day a week.
After careful consideration of all the evidence, the undersigned finds that
the claimant is credible in that he can be expected to have substantial
difficulty maintaining employment when the effects of substance abuse
are considered. The claimant has reported an extensive history of violence
and criminal activity which were apparently associated with substance
abuse, and which apparently have greatly decreased since he curtailed his
intake of drugs and alcohol. In light of this history, it may be concluded
that, with the effects of substance abuse, the claimant is unable to perform
activities requiring any public contact and that he is limited to minimal
contact with supervisors and co-workers. Moreover, he would be
expected to have difficulty meeting attendance and production
requirements on at least a weekly basis.
In making these conclusions, I give substantial weight to the assessments
of Dr. Oas, Dr. Rowland, and Dr. DeFrancisco. On each occasion, the
claimant indicated that his substance abuse was in partial or complete
remission, and the examiners assessed functional limitations accordingly.
However, each of the examiners described a history of substance-related
difficulties which were serious and prolonged. I therefore find that,
considering the effects of substance abuse, the claimant would be
significantly limited in his ability to sustain work activity, as set forth
above.
6.
The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).
The claimant has past relevant work as a construction worker, concrete
truck driver, and sanitation worker. At the hearing, the vocational expert
was asked to classify the claimant’s past work by skill and exertional level.
She responded that the claimant had worked as a construction worker II
(Dictionary of Occupational Titles No. 869.664-014), a semi-skilled job in the
heavy range of exertion; concrete truck driver (DOT No. 900.683-010), a
semi-skilled job in the medium range of exertion; and sanitation worker
(DOT No. 995.687-002), an unskilled job in the very heavy range of
exertion.
Given the claimant’s restriction to a limited range of light work, it is
concluded that the claimant is unable to perform any of his past relevant
work.
7.
The claimant was born on January 16, 1964, and was 34 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
8.
The claimant has a limited education and is able to communicate
in English (20 CFR 404.1564 and 416.964).
8

9.
The claimant’s acquired job skills do not transfer to other
occupations within the residual functional capacity defined above (20
CFR 404.1568 and 416.968).
10.
Considering the claimant’s age, education, work experience, and
residual functional capacity based on all of the impairments, including
the substance use disorder, there are no jobs that exist in significant
numbers in the national economy that the claimant can perform (20 CFR
404.1560(c), 404.1566, 416.960(c), and 416.966).
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If the claimant had the residual functional capacity to perform the full
range of light work, considering the claimant’s age, education, and work
experience, a finding of “not disabled” would be directed by MedicalVocational Rule 202.18. However, the claimant’s ability to perform all or
substantially all of the requirements of this level of work has been
impeded by additional limitations from all of the impairments, including
the substance use disorder. To determine the extent of erosion of the
unskilled light occupational base caused by these limitations, the
Administrative Law Judge asked the vocational expert whether jobs exist
in the national economy for an individual with the claimant’s age,
education, work experience, and residual functional capacity. The
vocational expert testified that given all of these factors there are no jobs
in the national economy that the individual could perform.
Based on the vocational expert’s testimony, the undersigned concludes
that, considering all of the claimant’s impairments, including the
substance use disorder, the claimant is unable to make a successful
vocational adjustment to work that exists in significant numbers in the
national economy. A finding of “disabled” is therefore appropriate under
the framework of the above-cited rule.
11.
If the claimant stopped the substance use, the remaining
limitations would cause more than a minimal impact on the claimant’s
ability to perform basic work activities; therefore, the claimant would
continue to have a severe impairment or combination of impairments.
Cessation of substance abuse would not be expected to have any effect on
the claimant’s musculoskeletal condition. Moreover, while the evidence as
a whole suggests that the claimant’s mental impairments are responsive to
treatment and that his symptoms are ameliorated by abstinence, the
impairments would continue to have a moderate effect on functioning
even if the claimant were to quit using any drugs or alcohol.
12.
If the claimant stopped the substance use, the claimant would not
have an impairment or combination of impairments that meets or
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medically equals any of the impairments listed in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d) and 416.920(d)).
As noted previously, cessation of substance abuse would not be expected
to have any effect of the claimant’s musculoskeletal condition.
If the claimant stopped the substance use, the remaining limitations
would not meet or medically equal the criteria of listings 12.04, 12.06, or
12.08. In terms of the “paragraph B” criteria, the claimant would have
mild restriction in activities of daily living if the substance abuse was
stopped. In social functioning, the claimant would have moderate
difficulties if the substance use was stopped. With regard to concentration,
persistence or pace, the claimant would have moderate difficulties if the
substance use was stopped. The claimant would experience no episodes of
decompensation if the substance use was stopped.
Because the remaining limitations would not cause at least two “marked”
limitations or one “marked” limitation and “repeated” episodes of
decompensation, the “paragraph B” criteria would not be satisfied if the
claimant stopped the substance use.
The limitations identified in the “paragraph B” criteria are not a residual
functional capacity assessment but are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process. The
mental residual functional capacity assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment by
itemizing various functions contained in the broad categories found in
paragraph B of the adult mental disorders listings in 12.00 of the Listing of
Impairments. Therefore, the following residual functional capacity
assessment reflects the degree of limitation the undersigned has found in
the “paragraph B” mental function analysis.
As discussed above, the evidence fails to establish the presence of the
“paragraph C” criteria in this case.
13.
If the claimant stopped the substance use, the claimant would
have the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except that he is unable to perform
overhead reaching and is unable to work around unprotected heights
and dangerous moving equipment. He is limited to minimal public
contact. He is unable to perform work requiring complex or detailed
instructions, but can perform work involving 1-2 step job instructions.
He is limited to routine work with minimal changes in job settings.
In making this finding, the undersigned has considered all symptoms and
the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence, based
on the requirements of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and
96-7p. The undersigned has also considered opinion evidence in
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accordance with the requirements of 20 CFR 404.1527 and 416.927 and
SSRs 96-2p, 96-5p, 96-6p and 06-3p.
In considering the claimant’s symptoms, the undersigned must follow a
two-step process in which it must first be determined whether there is an
underlying medically determinable physical or mental impairment(s)—
i.e., an impairment(s) that can be shown by medically acceptable clinical
and laboratory diagnostic techniques—that could reasonably be expected
to produce the claimant’s pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the claimant’s pain or other symptoms
has been shown, the undersigned must evaluate the intensity, persistence,
and limiting effects of the claimant’s symptoms to determine the extent to
which they limit the claimant’s ability to do basic work activities. For this
purpose, whenever statements about the intensity, persistence, or
functionally limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, the undersigned must make
a finding on the credibility of the statements based on a consideration of
the entire case record.
At the hearing, the claimant testified as follows: He is 45 years old. He is
married and lives with his wife, who is disabled. She is disabled due to
mental problems and spine and knee problems, but does not have
addiction problems. The claimant can’t comprehend reading. He can’t
write or spell well. He went to school through 11th grade in regular classes.
He used to work in construction. He was involved in framing wood and
steel construction. He stopped working because of chest pain, blacking
out, a neck and back injury incurred when a beam fell on his head, and
mental problems. He also worked in 1987 and 1988 as a concrete truck
driver. He passed out and wrecked a truck in 1987. He worked for a
sanitation service hauling garbage for 1½ years. He goes to the emergency
room for treatment. He has lied to doctors to get help. He has not worked
for anybody since 1998. He moved to Alabama from Florida around 1999
to 2001. He was married and his wife was working. He does not do drugs
or drink whiskey anymore. He last drank whiskey at Christmas 4 years
ago. He occasionally drinks a beer on holidays or weekends. The last time
he used marijuana was 6 or 7 months ago. He is on probation for 2 years.
He has a hard time thinking about his children. He has grandchildren but
can’t see them. People pick on him. It is hard to approach people because
they look down on him. He didn’t really start drinking and using drugs
[until] 1997 or 1998 when he was married to his second wife. He had
problems with depression and paranoia. People started messing with him
and he would fight. His last fight was with a neighbor 2 years ago. He has
neck problems because a beam hit him on the head and messed up 2 discs.
The discs were repaired. He has 2 fingers that are numb. His legs go out
on him. He has no medical coverage. He went to jail for child support a
number of times. In May 2001, he went to D.W. McMillan Hospital
because he hurt his right hand in a fight. He had a splint on his right 4th
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finger. He told his treating physician in 1999 that he was an alcoholic. He
has a probation officer in Conecuh County. They do drug screening, but
he has not failed a drug test. Dr. Wilkerson told him he had to stop alcohol
and illegal drugs. He takes Prozac, Seroquel, and [T]razodone. It helps,
but he still has nightmares. A caseworker comes once a month to his home
and talks to him. He continues his appointments. He sees the probation
officer every month in Evergreen. He is on probation for 2 years. He
doesn’t socialize anymore. They drink and are violent and want to fight.
He and his wife go to shop for groceries. They go fishing every 5 or 6
months. His wife goes to every appointment with him. She goes in with
him and sets up his medications daily. He can set them up, but he doesn’t
do it. He forgets to take his medications at times. He gets jittery when he
forgets his medications. He gets really nervous and stressed out. He has
trouble understanding things he reads. His wife explains paperwork to
him. He can’t remember or understand. He has been married for 7 years.
His wife has been on disability for 3 years. She has major depression.
The medication list submitted by the claimant indicates that he takes
[F]luoxetine 80 mg daily for mental disorder, [T]emazepam 15 mg daily
for sleep disorder, and Seroquel 200 mg daily for anxiety disorder.
If the claimant stopped the substance use, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to produce the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of
those symptoms are not credible to the extent they are inconsistent with
the residual functional capacity assessment for the reasons explained
below.
The claimant currently carries a diagnosis of major depression with
psychotic features. He has been diagnosed on several occasions with
anxiety and personality disorder. It is difficult to separate the signs and
symptoms of the claimant’s mental impairments from those of substance
abuse but, overall, there is no reason to suppose that his mental
impairment would not be amenable to control with treatment and
appropriate compliance. In fact, the most recent Mental Health note dated
August 18, 2008, indicates that the claimant’s auditory hallucinations had
nearly resolved. Mental status examinations performed by consultative
examiners have been largely unremarkable, and estimates of functioning
set forth by the consultative examiners and Mental Health personnel have
generally described no more than moderate functional limitations. Dr.
Wilkerson’s residual functional capacity assessments were apparently
based on the claimant’s subjective report of his own symptoms. The most
current available Mental Health notes, which were completed by Dr.
Wilkerson, indicate a GAF of 65, suggestive of mild symptoms and good
stability. Dr. DeFrancisco’s August 2007 report reflects that the claimant
was quite angry and bitter about the denial of disability benefits, but the
examiner reported that the claimant had a significant attitude problem
and blamed others for all his difficulties. The record as a whole does not
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establish that the claimant’s mental impairments are disabling when
considered separately from substance abuse.
In fact, the record suggests that the claimant’s symptoms have been
substantially aggravated by substance abuse. While he has claimed
periods of remission, the objective evidence fails to substantiate his
allegations. The claimant told Dr. DeFrancisco in August 2007 that he had
quit drinking 3 years previously, but Mental Health progress notes from
the same month indicate that the claimant was abusing alcohol,
specifically that he was consuming a 12 pack of beer daily and that he was
in trouble for growing marijuana. Dr. Wilkerson’s contention that his
August 2007 assessment was based strictly on the claimant’s mental
impairments apart from substance abuse is not supported by his own
Mental Health treatment notes, which indicate only mild to moderate
limitations. Moreover, Dr. Wilkerson reported that the claimant was
actively abusing alcohol in a treatment note generated the same month
that Dr. Wilkerson completed the assessment. The claimant himself
testified that he first started abusing drugs and alcohol around 1998 or
1999. His earnings records indicate that, although his work was somewhat
sporadic, he did continue to work until that time. Presumably, the
claimant’s mental impairments, which have occasionally been attributed
to a childhood history of physical abuse, existed before the claimant
started using drugs and alcohol. The claimant’s work history
demonstrates that he was capable of sustaining work despite his affective,
anxiety, and personality problems. The claimant’s mental impairments,
while they would be expected to have more than a minimal effect on
functioning, were not originally disabling, although they were
subsequently exacerbated by substance abuse.
I give substantial weight to the opinions of the consultative examiners, Dr.
Oas, Dr. Rowland, and Dr. DeFrancisco, and to Dr. Wilkerson’s Mental
Health progress notes, which, considered collectively, reflect that the
claimant had no more than moderate functional limitations. The stated
opinions are well supported by clinical examinations and testing, as
discussed above, and are generally consistent with the record as a whole.
I give little weight to the mental residual functional capacity assessments
and disability statements of Dr. Wilkerson, which are inconsistent with
the conclusions of the consultative examiners and which are contradicted
by his own progress notes indicating that he estimated only mild to
moderate functional limitations.
It is concluded that the claimant’s mental impairments limit him to
minimal public contact and preclude the performance of work requiring
complex or detailed instructions. However, the claimant can perform
work involving 1-2 step job instructions. He is limited to routine work
with minimal changes in job settings. Additionally, given his complaints
of chest pain and syncope, which have been found to be related to anxiety,
13

he has a restriction against exposure to unprotected heights and
dangerous moving equipment.
.

.

.

14.
If the claimant stopped the substance abuse, the claimant would
continue to be unable to perform past relevant work (20 C.F.R. 404.1565
and 416.965).
As discussed previously, the claimant’s limitation to a restricted range of
light work would preclude performance of any of his past work, even if he
discontinued substance abuse.
15.
Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills.
16.
If the claimant stopped the substance use, considering the
claimant’s age, education, work experience, and residual functional
capacity, there would be a significant number of jobs in the national
economy that the claimant could perform (20 CFR 404.1560(c), 404.1566,
416.960(c), and 416.966).
If the claimant stopped the substance use, the claimant would not have the
residual functional capacity to perform the full range of light work. To
determine the extent of erosion of the unskilled light occupational base
caused by the limitations that would remain, the Administrative Law
Judge asked the vocational expert whether jobs exist in the national
economy for an individual with the claimant’s age, education, work
experience, and the residual functional capacity the claimant would have
if he stopped the substance use. The vocational expert testified that given
all of these factors the individual would be able to perform the
requirements of representative occupations such as small parts assembler
(DOT No. 706.684-022), with 4,630 jobs existing in the state of Alabama
and 288,480 nationally; agricultural produce sorter (DOT No. 529.687-186),
with 670 jobs existing statewide and 40,770 nationally; and laundry sorter
(DOT No. 361.687-014), with 8,750 jobs existing statewide and 472,900
nationally.
Pursuant to SSR 00-4p, the vocational expert’s testimony is consistent with
the information contained in the Dictionary of Occupational Titles.
Based on the vocational expert’s testimony, the undersigned concludes
that, if the claimant stopped the substance use, he would be capable of
making a successful adjustment to work that exists in significant numbers
in the national economy. A finding of “not disabled” is therefore
appropriate under the framework of 202.18.
14

17.
Because the claimant would not be disabled if he stopped the
substance use (20 CFR 404.1520(g) and 416.920(g)), the claimant’s
substance use disorder is a contributing factor material to the
determination of disability (20 CFR 404.1535 and 416.935). Thus, the
claimant has not been disabled within the meaning of the Social
Security Act at any time from the alleged onset date through the date of
this decision.
(Tr. 823, 823-824, 824, 825, 826, 827, 827-828, 828-829, 829-832, 832-836 & 837-838 (most
internal citations omitted).) The Appeals Council affirmed the ALJ’s decision (Tr. 804806)2 and thus, the hearing decision became the final decision of the Commissioner of
Social Security.

2

In addressing the plaintiff’s “letter of exceptions” the Appeals Council noted the

following:
The Administrative Law Judge stated that she was not concurring with Dr.
Wilkerson’s opinions as they are not supported by his own treatment notes
which documented only mild to moderate limitations. In opposition to that, you
cited Dr. Wilkerson’s diagnoses and the fact that he prescribed medication. You
also noted that the claimant periodically reported auditory hallucinations. None
of these factors support the extreme limitations set by Dr. Wilkerson, and the
Administrative Law Judge appropriately rejected them.
You also asserted that the Administrative Law Judge improperly concluded that
the claimant would not be disabled if he stopped substance abuse in that he gave
significant weight to the findings of the consultative examiners who did not
themselves comment on whether substance abuse is a contributing factor to the
claimant’s mental illness. The assessments of those examiners are not indicative
of a disabling impairment regardless of substance abuse. The Administrative
Law Judge’s findings are supported by substantial evidence.
(Id. at 804.)

15

DISCUSSION
In making a social security disability determination, the Commissioner employs
a five-step sequential evaluation process. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th
Cir. 2004). The claimant bears the burden of proof at each of the first four steps of the
process, which are: (1) whether he is currently performing substantial gainful activity;
(2) whether he has severe impairments; (3) whether his severe impairments meet or
medically equal a listed impairment; and (4) whether he can perform his past relevant
work. See id. at 1237-1239. It is only at the fifth step of the sequential evaluation process
that the burden shifts to the Commissioner, who must establish that there are a
significant number of jobs in the national economy that the claimant can perform. See id
at 1239-1240. In addition to the foregoing, the Contract with America Advancement Act
of 1996 (“CAAA”), codified as amended at 42 U.S.C. § 423(d)(2)(C), “amended the
Social Security Act to preclude the award of benefits when alcoholism or drug addiction
is determined to be a contributing factor material to the determination that a claimant is
disabled.” Doughty v. Apfel, 245 F.3d 1274, 1275 (11th Cir. 2001). Therefore, in those cases
in which the Commissioner “determines a claimant to be disabled and finds medical
evidence of drug addiction or alcoholism, the Commissioner then ‘must determine
whether . . . drug addiction or alcoholism is a contributing factor material to the
determination of disability.’” Id. at 1279, quoting 20 C.F.R. § 404.1535. The Eleventh
Circuit went on to note that the “key factor in determining whether drug addiction or
alcoholism is a contributing factor material to the determination of a disability . . . is
whether the claimant would still be found disabled if he stopped using drugs or
alcohol.” Id., citing 20 C.F.R. § 404.1535(b)(1). As for who bears the burden of proof with
respect to this materiality determination, the Daughty court agreed with the Fifth
Circuit’s decision in Brown v. Apfel, 192 F.3d 492 (1999) and held that “the claimant bears
16

the burden of proving that his alcoholism or drug addiction is not a contributing factor
material to his disability determination.” Id. at 1280 (other citation omitted); see also id.
at 1276 (“We hold, as a matter of first impression in this Circuit, that the claimant bears
that burden.”).
As reflected above, the ALJ performed the required five-step sequential analysis
twice. In performing the first five-step inquiry, the ALJ assumed Whitehead was still
using alcohol and drugs. (Compare Tr. 823 with Tr. 833.) At step one, the ALJ determined
that plaintiff has not engaged in substantial gainful activity since May 15, 1998, the
alleged disability onset date. (Tr. 823.) At step two, the ALJ determined that Whitehead
suffers from the following severe impairments: “substance abuse disorder, affective
depressive disorder, generalized anxiety disorder, personality disorder, and cervical
spondylosis[.]” (Id.) At the third step, the ALJ found that plaintiff does not have an
impairment or combination of impairments that meets or medically equals any of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 830.) The ALJ then
determined “based on all of the impairments, including the substance use disorder,
the claimant has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b) except that he is unable to perform overhead
reaching and is unable to work around unprotected heights and dangerous moving
equipment. He is unable to perform work requiring complex or detailed instructions,
but can perform work involving 1-2 step job instructions. He is limited to routine
work with minimal changes in job settings. He is unable to tolerate public contact
and is limited to minimal contact with co-workers and supervisors. He is unable to
meet the routine attendance and production requirements of work about one day a
week.” (Tr. 831.) At step four, the ALJ found Whitehead unable to perform any of his
past relevant work (id.) and, at the fifth step, that “based on all of the impairments,
17

including the substance use disorder, there are no jobs that exist in significant
numbers in the national economy that the claimant can perform[.]” (Tr. 832.)
The ALJ then made a second five-step sequential inquiry and made findings as
“[i]f the claimant [had] stopped the substance use[.]” (Tr. 833.) In this second inquiry,
the ALJ found at step two that “the remaining limitations would cause more than a
minimal impact on the claimant’s ability to perform basic work activities; therefore,
the claimant would continue to have a severe impairment or combination of
impairments.” (Id.) At the third step, the ALJ determined that absent substance use
Whitehead still “would not have an impairment or combination of impairments that
meets or medically equals any of the [listed] impairments[.]” (Id.) The ALJ found that
absent substance use, “the claimant would have the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that he is
unable to perform overhead reaching and is unable to work around unprotected
heights and dangerous moving equipment. He is limited to minimal public contact.
He is unable to perform work requiring complex or detailed instructions, but can
perform work involving 1-2 step job instructions. He is limited to routine work with
minimal changes in job settings.” (Id. at 833-834.) At step four, the ALJ concluded that
the plaintiff “would continue to be unable to perform past relevant work[.]” (Tr. 837.)
However, at step five, the ALJ determined that in light of the vocational expert’s
testimony, and within the framework of Rule 202.18 of the Medical-Vocational
Guidelines, “there would be a significant number of jobs in the national economy
that the claimant could perform” should plaintiff stop the substance use. (Id.) Because
the ALJ determined that substance use was a contributing factor material to the
determination of disability, she concluded that Whitehead was not under a disability
from May 15, 1998 through the date of the decision (September 25, 2009). (Tr. 838.)
18

This Court reviews a social security disability case to determine whether the
Commissioner’s decision is supported by substantial evidence and whether the ALJ
applied the correct legal standards. See, e.g., Lewis v. Callahan, 125 F.3d 1436, 1439 (11th
Cir. 1997). Substantial evidence is defined as more than a scintilla and means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842
(1971); compare also Somogy v. Commissioner of Social Security, 366 Fed.Appx. 56, 62 (11th
Cir. Feb. 16, 2010) (“Substantial evidence is more than a scintilla . . . .” (citation omitted))
with Hillsman v. Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986) (an ALJ’s decision “cannot
stand with a ‘mere scintilla’ of support[]”). Even if the evidence preponderates against
the Commissioner’s decision, that decision must be affirmed if it is supported by
substantial evidence. Compare id. (“The decision of the ALJ need not be supported by a
preponderance of the evidence[.]”) with Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir.
1986) (“Even if the evidence preponderates against the [Commissioner], we must affirm
if the decision is supported by substantial evidence.”). And while this Court “’may not
decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the
[Commissioner,]’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (citation
omitted), it nonetheless “must view the entire record and take account of evidence in
the record which detracts from the evidence relied on by the ALJ[,]” Tieniber v. Heckler,
720 F.2d 1251, 1253 (11th Cir. 1983) (citations omitted); see also Chester v. Bowen, 792 F.2d
129, 131 (11th Cir. 1986) (“In determining whether substantial evidence exists, we must
view the record as a whole, taking into account evidence favorable as well as
unfavorable to the [Commissioner’s] decision.”).
With these principles in mind, the undersigned turns to a consideration of the
three issues raised by the plaintiff in this case, that is, his arguments that: (1) the ALJ
19

erred in rejecting the opinion of his treating psychiatrist; (2) the ALJ erred in
substituting her opinion for that of the treating psychiatrist; and (3) the ALJ failed to
comply with 20 C.F.R. §§ 404.1535 and 416.935 “in finding that substance abuse was a
contributing factor material to the determination of [his] disability.” (Doc. 14, at 3.) This
Court’s focus will be upon the third issue raised by plaintiff and from a discussion of
whether the ALJ properly determined that Whitehead’s drug addiction or alcoholism is
a contributing factor material to the determination of disability, the undersigned will
consider plaintiff’s “treating psychiatrist” and “substitution” contentions. That this
approach is appropriate is apparent given plaintiff’s contention that these latter two
issues “are closely related to [the ALJ’s] findings that substance abuse was a
contributing factor material to the determination of plaintiff’s disability.” (Doc. 14, at
15.)
Plaintiff contends that the ALJ failed to comply with 20 C.F.R. §§ 404.1535 and
426.935 in finding that substance abuse was a contributing factor material to a
determination of plaintiff’s disability by ignoring “findings of the claimant’s mental
health professionals and leap[ing] to the conclusion that a mental illness is not disabling
if aggravated by substance abuse.” (Doc. 14, at 16-17; see also id. at 16 (citing as evidence
of such “leaping” the ALJ’s concession that “’[i]t is difficult to separate the signs and
symptoms of the claimant’s mental impairments from those of substance abuse but,
overall, there is no reason to suppose that his mental impairments would not be
amenable to control with treatment and appropriate compliance[]’” and the ALJ’s
conclusions that “’[t]he record as a whole does not establish that the claimant’s mental
impairments are disabling when considered separately from substance abuse[]” and
“’the record suggests that the claimant’s symptoms have been substantially aggravated
by substance abuse.”).) The undersigned cannot agree with plaintiff that the ALJ in this
20

case “leapt” to any unreasonable conclusions or otherwise failed to comply with 20
C.F.R. §§ 404.1535 and 416.935 in finding that substance abuse was a contributing factor
material to a determination of plaintiff’s disability; instead, a review of the ALJ’s
decision in this case reveals a copious review of all record evidence from the alleged
onset date of May 15, 1998 through the date of the decision and a detailed explanation
by the ALJ of why the evidence in the record as a whole supports the conclusion that
Whitehead’s substance abuse is a material contributing factor. In other words, contrary
to plaintiff’s contention, substantial evidence supports the ALJ’s conclusion that
substance abuse is a contributing factor material to plaintiff’s disability and plaintiff, as
a consequence, has not carried his burden of proving that his alcoholism or drug
addiction is not a contributing factor material to his disability determination.
The ALJ’s “two-time” performance of the five-step sequential inquiry, as
synopsized above, certainly reflects that the hearing officer drafted her decision in
compliance with 20 C.F.R. §§ 404.1535 and 416.935. The undersigned would note that
there are references in the record to plaintiff’s abuse of alcohol and drugs exacerbating
his mental impairments, or, otherwise, records indicating that when alcohol and drugs
are taken away and psychiatric medications adjusted there is a concomitant decrease in
symptoms (see, e.g., Tr. 667-693 (medical records from April and May of 2003 reflect that
plaintiff was seen in the emergency room for treatment of cutting his wrists following
his alcohol-infused altercation with his wife’s son and subsequent confinement in jail
and later psychiatric hospitalization for six days where he was medicated for alcohol
withdrawal symptoms and psychiatric medications were adjusted, which, when
combined with individual and group therapy, resulted in sustained improvement in
that he no longer had thoughts of wanting to hurt himself or others); Tr. 493 (June 23,
2002 hospital report linking increase in anxiety with use of alcohol, the admitting
21

physician specifically noting that plaintiff had “allegedly [] completed some periods of
sobriety prior to my caring for him on 10/01 and recently states that the reason that he
has been drinking and having a great deal of anxiety is because while under the care of
Dr. Yearwood, at the Tri-City Medical Clinic in Evergreen, he was sent to an orthopedic
surgeon in Montgomery, who told him he needed surgery on his back, but because of
lack of financial insurance, was told to get a second opinion.”)),3 all of which stand in
stark contrast to the various reports of consultative psychologists reflecting, at best,
either moderate psychiatric limitations caused by plaintiff’s psychiatric impairments
where plaintiff reported non-use of alcohol and drugs (compare Tr. 710 (Dr. Robert
DeFrancisco’s August 18, 2003 consultative report wherein the conclusion was drawn,
following examination and review of the record, that plaintiff would be able to “carry
out, remember instructions, and handle simple work pressures,” from a psychological
standpoint) with Tr. 961-964 (Dr. DeFrancisco’s follow-up consultative report dated July
30, 2007 wherein the consultant indicated that plaintiff appeared capable of
“remember[ing] simple instructions[]” and was moderately limited in all spheres) or,
otherwise, a clear ability to handle financial affairs, regardless of any reported
substance abuse (compare Tr. 319 (August 31, 1999 report from Dr. Oas indicating that
plaintiff was “mentally competent for pay and records purposes[]”) with Tr. 342 (Dr.
Kent Rowland’s February 19, 2001 assessment that plaintiff appeared “capable of
managing his own funds[]”) and Tr. 961 (Dr. DeFancisco’s 2007 assessment that plaintiff
appeared “to have enough intellectual ability to handle his benefits[]”), see Doughty,
3

The record also reflects evidence that plaintiff’s substance abuse, particularly his
abuse of alcohol, has exacerbated or been the root cause of some of his physical maladies. For
instance, there is record evidence from late 2001 (see Tr. 411-489) that Whitehead’s persistent
vomiting was related to his abuse of alcohol (see, e.g., Tr. 468 (“Persistent gastroenteritis,
probably alcoholic gastritis[.]”)).

22

supra, 245 F.3d at 1281 (finding it significant that a medical source had stated “he
believed Doughty was capable of handling his own financial affairs[]”). Moreover, a
copious review of the clinical notes of Whitehead’s treating psychiatrist, Dr. William
Wilkerson, does not foreclose the appropriateness of the ALJ’s determination that
substance abuse is a contributing factor material to plaintiff’s disability determination
inasmuch as Wilkerson’s clinical notes dated August 7, 2007 detail plaintiff’s alcohol
and marijuana abuse, along with reports of auditory hallucinations (see Doc. 999
(“’people outside talking’”)), and, some two weeks later, on August 21, 2007, Wilkerson
is only able to comment on his mental residual functional capacity evaluation of
plaintiff (see Tr. 995-996) that plaintiff’s “Mood Disorder is separate from his substance
abuse and is not caused by it.” (Id. at 996.) This conclusion by Dr. Wilkerson, of course,
betrays no indication that plaintiff’s substance abuse does not exacerbate his mood
disorder. Indeed, Dr. Wilkerson’s prominent mention of plaintiff’s substance abuse in
his comment section suggests that he was considering both impairments in completing
the RFC form. (See Tr. 996.) Further, as correctly noted by the ALJ, Whitehead’s claimed
periods of remission—or the absence of alcohol abuse—is not consistent with the
objective medical evidence (see Tr. 835). See Payne v. Astrue, 2012 WL 1190852, *8 (M.D.
Ala. Apr. 10, 2012) (reflecting that a claimant’s credibility is significant with respect to
the “material factor” analysis, the court specifically observing that the evidence of
record established “that the ALJ was correct in his credibility finding when Payne
acknowledges in a social security questionnaire that he still drank six to twelve beers a
day on November 24, 2008, and then on the next day, as part of his progress notes in
alcohol treatment, insists that he is not drinking.”).) More specifically, on August 5,
2007, Whitehead reported to Dr. DeFrancisco that he quit drinking three years earlier
(Tr. 959 (“He used to have an alcohol problem, but he says he ha[s] been off alcohol for
23

three years.”)), yet only two days later, on August 7, 2007, Dr. Wilkerson’s office notes
reflect plaintiff’s report that he had just recently quit smoking marijuana after getting
into trouble for growing the drug and his further admission that he was drinking a 12pack of beer daily (Tr. 999).4
Based on all of the foregoing, therefore, this Court finds that the ALJ’s
determination that Whitehead’s substance abuse is a contributing factor material to his
disability is supported by substantial evidence. The fact that some of the evidence, all of
which the ALJ considered in her lengthy opinion, might suggest otherwise is of no
moment given that substantial evidence supports the ALJ’s determination in this
regard. Nor does the ALJ’s admission regarding the difficulty of “separating the signs
and symptoms of the claimant’s mental impairments from those of substance abuse”
(Tr. 835) detract from the hearing officer’s ultimate conclusion; instead, such difficulty is
nothing more than a reflection of the contents of the medical reports.
Looking at the other side of the coin, plaintiff’s reliance on the various opinions
of Dr. Wilkerson to carry his burden of demonstrating that his alcoholism or drug
addiction is not a contributing factor material to his disability need fail inasmuch as the
ALJ in this case properly assigned little weight to the treating psychiatrist’s mental
residual functional capacity assessments (Tr. 995-996 & 1072-1073) and disability
statements (Tr. 973 & 997).

4

Plaintiff admitted during the hearing that he still consumes alcohol and although
Whitehead stated he only drinks a beer on holidays or the weekends (see Tr. 1115), it is
impossible for this Court to appropriately understand how an individual like Whitehead, an
admitted alcoholic, can control his alcohol intake after years of abuse.

24

The Eleventh Circuit has determined that “the testimony of a treating physician
must be given substantial or considerable weight unless ‘good cause’ is shown to the
contrary.” Lewis, supra, 125 F.3d at 1440.
The ALJ must clearly articulate the reasons for giving less weight to the
opinion of the treating physician, and the failure to do so is reversible
error. We have found “good cause” to exist where the doctor’s opinion
was not bolstered by the evidence, or where the evidence supported a
contrary finding. We have also found good cause where the doctors’
opinions were conclusory or inconsistent with their own medical records.
Id. (internal citations omitted); see also Phillips supra, 357 F.3d at 1241 (“’[G]ood cause’
exists when the: (1) treating physician’s opinion was not bolstered by the evidence; (2)
evidence supported a contrary finding; or (3) treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records.”). The Eleventh
Circuit has also made clear that “[w]here the ALJ articulated specific reasons for failing
to give the opinion of a treating physician controlling weight, and those reasons are
supported by substantial evidence,“ a reviewing court may not “disturb the ALJ’s
refusal to give the opinion controlling weight.” Carson v. Commissioner of Social Security
Administration, 300 Fed.Appx. 741, 743 (11th Cir. Nov. 21, 2008) (citation omitted).
The Court finds that the ALJ articulated good cause for according little weight to
Dr. Wilkerson’s opinions regarding plaintiff’s mental RFC and other disability
statements. (Tr. 836.) The ALJ correctly noted that neither the evidence of record as a
whole or Dr. Wilkerson’s own findings in his treatment notes support the severity of
limitations found by plaintiff’s treating psychiatrist. (Compare Tr. 995-996 (Wilkerson’s
August 21, 2007 findings that plaintiff would have marked limitations in responding
appropriately to supervision and co-workers in a work setting and customary work
pressures, as well as marked limitations in understanding, carrying out and
remembering instructions in a work setting) and Tr. 1072-1073 (Wilkerson’s February
25

17, 2009 findings that plaintiff would have a marked impairment in maintaining social
functioning; a marked deficiency in concentration, persistence and pace; and marked
limitations in responding appropriately to supervision and co-workers in a work setting
and customary work pressures) with Tr. 316-319, 339-343, 382, 707-710, 711-714, 727,
951-953 & 958-964 (the reports and/or assessments of examining and non-examining
consultative psychologists reflecting, at best, moderate limitations in all areas impacting
employment for which Dr. Wilkerson indicated there were marked limitations, or
otherwise indicating that plaintiff was competent to manage his own funds or benefits)
and Tr. 1067 (in signing plaintiff’s 2008 treatment plan on January 15, 2008, Dr.
Wilkerson noted Whitehead’s 2007 GAF score to be 65, the same as his current year—
2008—score, same indicating, as pointed out by the ALJ, “mild symptoms and good
stability”5).6 Moreover, the undersigned is of the opinion that the various limitations
noted by Dr. Wilkerson on the two assessments are suspect given the treating
psychiatrist’s indication that plaintiff’s ability to perform simple and repetitive tasks in

5

“A GAF score of 61-70 indicates: some mild symptoms (e.g., depressed mood
and mild insomnia) OR some difficulty in social, occupational, or school functioning . . . but
generally functioning pretty well, [with] some meaningful interpersonal relationships.” Regul v.
Astrue, 2010 WL 1189351, *5 n.2 (N.D. Fla. Feb. 22, 2010) (citation omitted), report and
recommendation adopted by, 2010 WL 1189348 (N.D. Fla. Mar. 23, 2010); compare id. with Rodrigue v.
Astrue, 2011 WL 6961022, *6 (M.D. Fla. Dec. 6, 2011) (“A GAF score of 51 to 60 means moderate
symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate
difficulty in social, occupational, or school functioning[.]”),report and recommendation adopted by,
2012 WL 37227 (M.D. Fla. Jan. 6, 2012).
6

Dr. Wilkerson’s January 9, 2007 letter to a child support judge opining that
plaintiff is disabled (Tr. 973) and his May 1, 2007 “To Whom It May Concern” letter opining
plaintiff’s inability to work (Tr. 997) were properly rejected by the ALJ as unsupported by the
evidence. Moreover, these opinions are conclusory and, therefore, were properly rejected. See
Lewis, supra, 125 F.3d at 1440. Indeed, it is clear that the precipitating event for Dr. Wilkerson’s
penning of the first letter was plaintiff telling his treating psychiatrist that he needed a letter
stating he was disabled. (Tr. 985 (“Pt being threatened [with] jail over child support. He needs a
letter saying he is disabled. He hasn’t worked since 1998. He’s been attending Mental Health
since 2002.”).)

26

a work setting, as well as his ability to understand, carry out and remember instructions
in a work setting, improved from the first assessment in 2007 to the second assessment
in 2009 (compare Tr. 995-996 (2007 assessment indicates a marked limitation in
Whitehead’s ability to understand, carry out and remember instructions in a work
setting, and moderate limitations in plaintiff’s ability to perform simple and repetitive
tasks in a work setting) with Tr. 1072-1073 (2009 assessment indicates a moderate
limitation in Whitehead’s ability to understand, carry out and remember instructions in
a work setting, and mild limitations in plaintiff’s ability to perform simple and
repetitive tasks in a work setting)), whereas Wilkerson indicated that plaintiff’s
impairments in social functioning and concentration, persistence and pace had actually
gotten worse over the years (compare Tr. 995 (2007 assessment indicates a moderate
impairment in maintaining social functioning and moderate deficiencies of
concentration, persistence and pace) with Tr. 1072 (2009 assessment indicates a marked
impairment in maintaining social functioning and marked deficiencies of concentration,
persistence and pace)), without any explanation for the changes either on the 2009 form
or in contemporaneous office notes. For these reasons, therefore, the undersigned is
unable to “disturb the ALJ’s refusal to give [Dr. Wilkerson’s various] opinion[s]
controlling weight.”7 Carson, supra.8
7

The undersigned would note that given the determination that the ALJ properly
declined to give substantial weight to the marked limitations indicated by Dr. Wilkerson on the
two mental RFC assessments, Dr. Wilkerson’s specific notation on the 2009 form that plaintiff’s
“psychiatric impairment [would] remain at [those] same levels” even had substance abuse been
diagnosed (Tr. 1073) has been stripped of all relevance.
8

The undersigned would also note disagreement with plaintiff’s contention that
the ALJ substituted her opinion for that of the treating psychiatrist, Dr. Wilkerson (see Doc. 14,
at 12-15). As previously discussed, the ALJ properly rejected Dr. Wilkerson’s various disability
opinions and substantial evidence of record supports the ALJ’s determination that substance
abuse was a contributing factor to Whitehead’s disability. Just as important, “the ALJ has the
ultimate responsibility to assess a claimant’s residual functional capacity[,]” Carson, supra

(Continued)
27

Based upon the foregoing, it is clear that the Commissioner’s decision to deny
benefits in this case—on the basis that Whitehead’s substance abuse is a contributing
factor material to the determination of disability—is both correct and supported by
substantial evidence.
CONCLUSION
It is ORDERED that the decision of the Commissioner of Social Security denying
plaintiff benefits be affirmed.
DONE and ORDERED this the 29th day of November, 2012.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

(citations omitted), and since the ALJ’s RFC assessment in this case, based on the claimant
stopping his substance abuse (see Tr. 833-834), is supported by substantial evidence and the
vocational expert (“VE”) identified jobs which exist in significant numbers in the national
economy that an individual with such an RFC can perform (compare Tr. 837-838 with Tr. 11451146), the decision to deny benefits in this case was appropriate.

28